Debtors Prison or Breach of Fiduciary Obligation? A Habeas Corpus that Worked.

24 May Over the years, Ive seen scores of habeas corpus petitions. Virtually all have failed to cause a prisoner to be released. In fact, Ill bet that at least 95% (and probably 99%) of all petitions for writ of habeas corpus are routinely dismissed by the courts. Over the years, Ive also heard that debtors prisons were abolished in this country at least two centuries ago. Nevertheless, fathers are routinely jailed for failing to pay child support. How could a parent be jailed for not paying child support and not be subjected to a debtors prison? The following petition for writ of habeas corpus offers a clue. Reportedly, a man was recently sentenced to 179 days in jail for failure to pay roughly $7,000 in back child support. Reportedly, he used the following petition for writ of habeas corpus and was released after just five days in the slammer. Given that 95% or more of all such petition fail completely, getting out in five days is pretty good. Of course, the fact that this petition allegedly worked in one instance does not prove that it will work in all instances or even in any other instance. Even so, the petition is relatively short, simple and to the point. Its worth the consideration of anyone interested in habeas corpus technology not merely because it seems efficient, but because this petition hints at a powerful insight into how courts routinely jail parents for not paying child support without violating the prohibitions against debtors prison. I believe the keys to understanding the power of this petition are: 1) Recognizing that the judge jailed the defendant based on the presumption that the defendant had the capacity to paythe child support; and, 2) Defeating that presumption by arguing theres no evidentiary support for that presumption. Why is the judges presumption that the defendant has thecapacity to pay the child support so important? A: Because if the judge jailed the defendant for simply not paying the $7,000, the defendant would be placed in a DEBTORS prisonwhich is illegal. Butthe judge could jail the defendant for civil contempt if the defendant refused or otherwise failed to pay a bill that he had the capacity to pay. The distinction is subtle. Do you see it? The courts are not jailing the modern deadbeat dad for failing to pay the debt (that would be debtors prison); theyre jailing him for refusingto pay the debt which he could pay (which is deemedcontempt). Englands original debtors prisons were for people who could not pay their bills. They didnt have the money/capacity to do so. Debtors prisons were essentially bankrupts prisons and have been illegal in this country for several centuries. We reasoned, correctly, that there was no point to jailing a man for not paying his bills if he was insolvent. Why should the government pay to feed and shelter a man who couldnt afford to provide his own food and shelter? How does jailing a man for failing to pay his debts help to cause those debts to be paid? Surely, if the man was

broke on the outside, hed be penniless on the inside. Jailing for failure to pay debts was selfdefeating. But while this country forbade debtors prisons, a man can still be jailed in this country under the pretext of contempt if he had the capacity (sufficient money) to pay an alleged debt but refused to do so. Under such circumstances, the defendant would not be placed in debtors prison for failing to pay a debt; hed be placed in fiduciarys prison for breach of a fiduciary obligation (contempt of court). Its all smoke and mirrors and pretexts. But that analysis seems to be, roughly, accurate. Butif a defendant lacked the capacity (money) to pay the debt required to purge the presumed civil contempt, the defendant could not be in contempt. Contempt cant be found against a man for failing to do the impossible. A judge cant order you to leap over a tall building in a single bound and then jail you when you fail to do so. Its only civil contempt if you have the capacity to perform as ordered. In this case, as soon as the defendant entered evidence that helacked the capacity to pay the alleged debt, he could no longer be lawfully held for civil contempt. If the trial court continued to incarcerate the defendant, that incarceration would be illegal in that the insolvent debtor would not be jailed for contempt but would instead be illegally jailed in debtors prison for mere failure (but not refusal/contempt) to pay. I believe that once the appellate court recognized that the defendant had no capacity to pay/purge the contempt, there was no contemptonly debtors prison. The appellate court probably ordered his release post-haste in order to shield the trial court and whatever city it represents from being sued into oblivion for having jailed an insolvent in debtors prison. This strikes me a potentially powerful insight. Once you understand that being jailed for failure to pay any bill is presumed to be incarceration for civil contempt, and that contempt is based on the presumption that you have the capacity to pay, then anytime you can show that the prosecutor failed to prove that you have sufficient capacity (money) to pay, youll have to be released. What about those instances where you are fined and allowed to work off the fine at the rate of $20 a day in the slammer? Ill bet that being jailed for failure to pay the fine is ultimately based on a civil contempt thats based on the presumption that you have the capacity to pay the fine but refuse to do so. So the court probably cuts a deal whereby you are asked to consent to sit in jail for 30 days to work off a $600 fine. If you consent, the deal goes through. But what if you dont consent and instead deny that you have the capacity to pay the fine? Would the court have to release you without paying the fine? Id have to read the law closely in any given instance, but what if the law required you to pay (rather than discharge) some fine or child support, etc. What if you understood that its impossible to actually pay any debts with legal tender (federal reserve notes)? What if FRNs only discharge (but dont pay) debts? If that were true, then, even if you had $1 million FRNs, it would be technically impossible for you to actually pay (if thats the word the relevant law used) even a $20 fine for spitting on the sidewalk. See where Im goin with this? Suppose you were an alleged taxPAYER (rather than a taxdischarger). Could you be jailed for contempt for refusing/failing to pay an income tax debt with FRNs if FRNs only discharge (rather thanpay) debts? Would such incarceration be presumed to be based on a civil contempt of some court order to pay? Would the presumption of civil contempt be based on the presumption that the taxPAYER actually had the capacity (money) to PAY? And, given that

lawful money has been removed from circulation and it is therefore virtually imposible for anyone to actually pay his debts, then if the alleged taxPAYER only had FRNs and FRNs were incapable of paying debts but could only discharge debts, then could the alleged taxPAYER be jailed for civil contempt for failing to do the impossible? Inquiring minds wanna know. The original petition was handwritten. What follows is a typed copy that includes the original authors formatting, grammar as well as his punctuation and spelling mistakes. Fifth District Court of Appeal Daytona Beach, Florida RAFAEL CARBONELL Petitioner Lower Tribunal Case# v. 48-2008-DR-009708-0 Respondent DEYDRY CAPELLA Writ of Habeas Corpus Comes now the above named Petitioner moves this Court for an order to produce the body and an order for release for the lower Tribunals violation th of the Petitioners due process rights under the section 1 of the 14 amendment of the United States Constitution, article 1 section 9 of the Florida Constitution, Florida Family law rules of Procedure 12.615 (d)(1), (e). 1. The petitioner was found in contempt for not paying child support on -12-11-092. The petitioner does not have the present ability to pay the purge ordered by the lower Tribunal (see attached order). 3. Before an alleged contemnor can be ordered incarcerated for civil contempt, the court must make a separate affirmative finding that the contemnor posses the present ability to comply with the purge conditions set forth in the contempt order. Shelton v. Shelton app. 2 Dist., 965 So. 2d 179 (2007) 4. The trial courts order does not have any findings and supportive evidence that the Petitioner has the present ability to pay. As required by Florida Family law ruls of procedure 12.615 (d) (1) Janeski v. Janeski, app 2 dist, 774 So. 2d. 1220 (2008) 5. incarceration for civil contempt is available only when the contemnor has the ability to comply with the courts order. Bowen v. Bowen, 471 So. 2sd 1274, 1277 (Fla. 1985) 6. The lower Tribunal, pursuant to 12.615 (E) did not bring back the Petitioner within 48 hours to determine if the petitioner had the present ability to comply with the purge.

Wherefore, the above named Petitioner requests an order of immediate release from incarceration for violation of the Petitioners due process rights under the Section 1 of the th 14 Amendment of the United States Constitution, Article 1 Section 9 of the Florida Constitution, Florida Family Law Rules of procedure 12.615 (d) (1), (E) Certificate of Service I hereby certify that a copy of document was mailed to the respondent on the 1-12-2010 day of January. Signature_____________________ Name________________________ Address_______________________ City, State, Zip code______________